The influential D.C. Circuit Court of Appeals has issued a short procedural order rebuking the Obama Administration in a lawsuit that was filed by Wheaton College and Belmont Abbey College. The two religiously affiliated organizations had challenged the Department of Health and Human Services’ (HHS) anti-conscience mandate that requires them to fund health care plans for their employees that provide abortion-inducing drugs, contraception, and sterilization, or else pay substantial penalties.

As discussed in a Heritage Legal Memorandum, the plaintiffs have very strong claims that the mandate violates their rights under the First Amendment and the Religious Freedom Restoration Act.

Following the uproar that ensued after the mandate was issued, the government announced a one-year, temporary enforcement suspension against some religious employers. The Obama Administration misleadingly labeled this move a “safe harbor.” The Administration then announced its intention to develop and propose changes to the HHS mandate that would provide contraceptive coverage without cost-sharing to covered individuals while at the same time accommodating the religious objections of nonprofit organizations like the plaintiffs.

In light of this non-binding promise to make some hypothetical policy changes that would supposedly assuage objectors’ concerns, some lower courts dismissed this and other similar lawsuits as being premature. But the D.C. Circuit has now indicated that it is prepared to hold the government’s feet to the fire, so to speak.

The D.C. Circuit’s ruling not only keeps the case alive, but also highlighted two concessions that government lawyers made during the oral argument of the case. First, the government promised “it would never enforce [the mandate] in its current form” against the plaintiffs or other similarly situated religious groups. Second, the government promised it would publish a proposed new rule “in the first quarter of 2013” and would finalize it by next August.

With respect to both assertions, the court stated, “We take the government at its word and will hold it to it.” The court stated that it “will hold these cases in abeyance, subject to regular status reports to be filed by the government with this court every 60 days.”

This ruling mirrors a recent decision by a federal judge from the Eastern District of New York, who rejected an identical argument by the government in a case that was filed by the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island. As the judge in that case succinctly and compellingly observed, “[T]he First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. There is no, ‘Trust us, changes are coming’ clause in the Constitution.”

The HHS mandate gives unprecedented power to the federal government to dictate how religiously affiliated institutions must behave, ignoring their religious identity and weakening the important role they play in society. Religious freedom is the birthright of every American. Let us hope that the courts uphold this important principle and give full measure to protecting our cherished First Freedom.

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John G. Malcolm is the vice president of the Institute for Constitutional Government and director of the Edwin Meese III Center for Legal and Judicial Studies, overseeing The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law. Read his research.

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